MONORY v. HUNGARY and ROMANIA

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 71099/01
by György MONORY
against Hungary and Romania

The European Court of Human Rights (Second Section), sitting on 17 February 2004 as a Chamber composed of

MrJ.-P. Costa, President,
MrA.B. Baka,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrM. Ugrekhelidze,
MrsA. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 23 November 2000,

Having regard to the observations submitted by the respondent Governments and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

A.  The circumstances of the case

The applicant, Mr György Monory, is a Hungarian national, who was born in 1946 and lives in Nagymaros, Hungary. He was represented before the Court by Ms L. Farkas, a lawyer practising in Budapest. The Hungarian Government were represented by Mr L. Höltzl, Deputy           State-Secretary, Ministry of Justice. The Romanian Government were represented by their Agent, Mr B. Aurescu, Ministry of Foreign Affairs.

1.  Abduction of the applicant’s daughter and divorce proceedings initiated in Romania

In 1994 the applicant married Ms C.M., who is a national of both Romania and Hungary. On 16 February 1995 their daughter V. was born. They lived in Nagymaros. In December 1998 they visited the wife’s family in Romania. The applicant returned to Hungary, while C.M. stayed in Romania with V. and promised to return by 30 January 1999.

On 4 January 1999 C.M. filed for divorce, custody of V. and maintenance before the Satu Mare District Court in Romania. On 17 January 1999, she informed the applicant by telephone that she had decided to live in Romania and would not allow him, despite him still being her husband and having joint custody of their daughter, to take V. to Hungary.

These divorce proceedings are still pending.

2.  Proceedings under the Hague Convention, in large part before the Romanian courts

On 20 January 1999, the applicant submitted a request for the return of his daughter to Hungary under Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The request was submitted through the Hungarian Ministry of Justice (hereinafter “the Hungarian Ministry”) to the Romanian Ministry of Justice (hereinafter “the Romanian Ministry”). He argued that V. was the victim of international kidnapping and had been retained in Romania unlawfully within the meaning of Article 72 § 1 of the Hungarian Code on Family Law.

The Romanian Ministry, acting as the Central Authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Romanian Satu Mare District Court.

On 8 June 1999 the District Court found no violation of the relevant Articles of the Hague Convention and refused the applicant’s request.

On 5 October 1999 the Hungarian Nagymaros Guardianship Authority, at the applicant’s request, declared that C.M. had not instituted administrative proceedings before it, as required by the Hungarian Code on Family Law, with a view to their daughter’s lawful removal to and stay in Romania.

On 22 October 1999, the Romanian Satu Mare Regional Court dismissed the applicant’s appeal against the decision of 8 June 1999, holding that C.M. would be deprived of her access rights to V. if a favourable decision were to be given to the applicant, and C.M. would thus be discriminated against.

The Romanian Ministry appealed on points of law against this decision, alleging that the Regional Court had incorrectly interpreted the applicable law and the facts of the case. They recalled that, according to the Hague Convention, the court should have applied Hungarian law. They stated that the retention of the child over the border by her mother without the father’s consent was in violation of Hungarian law because it prevented the father from equal exercise of his parental rights.

On 2 February 2000, the Romanian Oradea Appellate Court dismissed the appeal. It found that even under Hungarian law, which the court applied in this case, the parents exercised parental rights jointly. However, due to the concrete family situation, it was normal that the parent living abroad would have to invest more efforts in order to exercise these rights. It considered that the child had already been integrated in the new environment. Accordingly, it held that it was in the best interests of the child that she remained with her mother.

The decision was drafted on 3 February 2000. It was not subject to ex officio service on the parties, as provided for in Article 266 of the Romanian Code of Civil Procedure.

In a letter addressed to its Romanian counterpart, dated 7 April 2000, the Hungarian Ministry referred to a confirmation received from the applicant that his appeal on points of law had been turned down by the Oradea Appellate Court and enquired on his behalf as to whether there were any further remedies available.

In reply to this letter, on 4 May 2000 a courtesy copy of the decision was sent to the Hungarian Ministry for information. The contents thereof were communicated to the applicant in a letter dated 24 May 2000, which was received by the applicant on 29 May 2000.

By letter of 5 March 2001, following requests from the applicant made through the Hungarian Ministry, the Romanian Ministry informed their Hungarian counterpart that there was no possibility to lodge an extraordinary appeal against the final decision. They reminded the Hungarian Ministry that the fact that the applicant had not been present when the final decision had been adopted did not constitute a ground for an extraordinary appeal according to the Romanian law:

“Regarding Mr Monory’s assertion that he was not subpoenaed, this is perfectly normal, since the Romanian Ministry of Justice that was subpoenaed represented him before the Court. The fact that the Court’s decision was taken in his absence cannot constitute a ground for an extraordinary appeal since Mr Monory’s representative (the Romanian Ministry of Justice) requested the judgment in the absence of the   petitioner (...)”.

By letter posted in Hungary on 23 November 2000, the applicant lodged his application with the Court.

3.  Proceedings for divorce and custody, mainly before the Hungarian courts

Meanwhile, on 28 April 1999 the applicant filed for the custody of V. before the Vác District Court in Hungary. On 17 May 1999 the applicant requested the court to proceed with the case as a matter of urgency and to hear witnesses.

On 21 May 1999 the District Court, via the Ministry of Justice, notified the defendant in Romania of the action.

On 30 August 1999 the applicant requested, by way of an interim measure, that V. be temporarily placed in his care and that the mother’s custody rights be terminated.

On 8 September 1999 the District Court held a hearing, dismissed the applicant’s request for interim measures and suspended the case until the proceedings on the Hague Convention issues had been finalised. The District Court noted that divorce proceedings before the Romanian Satu Mare District Court had also been suspended on an earlier date for the same reason. The applicant appealed against this decision on 16 September 1999.

On 21 September 1999 the Pest County Public Prosecutor’s Office interceded in the proceedings on the side of the applicant and concurred with the applicant’s appeal of 16 September 1999 filed against the decision of the Vác District Court. On 30 September 1999 both the applicant’s and the public prosecutor’s appeals were served on the defendant, who received them on 28 December 1999.

Meanwhile, on 29 October 1999 the applicant repeatedly requested the District Court to grant him, by way of an interim measure, custody of the child, to terminate the mother’s parental right and to proceed with the case urgently.

On 31 January 2000 the applicant renewed his request for custody of the child. He also filed a motion for bias against the District Court and the presiding judges. He renewed the motion on 21 February 2000.

On 29 February 2000 the Pest County Regional Court upheld the dismissal of the applicant’s request for interim measures but instructed the District Court to resume its proceedings. This decision, notified via the Hungarian Ministry, reached the defendant on 29 May 2000.

Meanwhile, on 19 May 2000 the District Court ordered that a study be made in the homes of both parties in order to ascertain their living conditions. A study was carried out in the applicant’s home on 8 June 2000. The order was served on the defendant on 10 July 2000 and the relevant documents forwarded on 23 January 2001 to the Ministry of Justice with a view to carrying out a similar study in the defendant’s home in Romania.

The applicant’s repeated motions for bias were dismissed on 27 September, 26 and 30 October and 11 December 2000.

On 5 January 2001 the District Court joined to the proceedings the applicant’s further claim for divorce which had been filed on 3 July 2000. The defendant was notified of this measure on 1 March 2001.

On 21 and 30 January 2001, respectively, the applicant submitted further documents and requested the court to summon further witnesses.

The applicant’s renewed request of 31 January 2001 for an interim measure was dismissed by the District Court on 15 February 2001.

On 6 June 2001 the District Court held a hearing and heard four witnesses. The defendant failed to appear. The court therefore requested her to submit her observations on the minutes of the hearing within 15 days and ordered her to submit a preparatory document on the applicant’s claim for custody of the child.

On 8 June 2001 a lawyer practising in Hungary informed the court that the defendant had authorised him to represent her in the case. On 2 July 2001 the defendant submitted her counter-claim and motions for evidence.

On 5 July and 30 October 2001 the Hungarian Ministry made an enquiry with its Romanian counterpart as to whether the envisaged study of the defendant’s home could be carried out. In their reply of 10 December 2001, the Romanian Ministry stated that the relevant documents had been lost.

A hearing was held on 7 November 2001 at which the District Court heard a witness. The defendant’s representative informed the court that the request to carry out a study on the defendant’s living conditions had been served on the defendant by mistake. Consequently, the District Court asked the Hungarian Ministry to send the request again to the Satu Mare District Court.

On 8 November 2001 the District Court refused to regulate the applicant’s access rights by way of an interim measure.

On 22 and 29 November 2001 the District Court invited the applicant to update the addresses of two of his witnesses who could not be summoned. On the previous day the applicant had appealed against the order of 8 November 2001.

On 19 December 2001 the District Court held a hearing and heard witnesses. It also set a statutory three-month time-limit for the parties to reconsider and to confirm the continuation of the divorce proceedings.

Meanwhile, on 14 November 2001 the witness requested by the Vác District Court was heard by the Satu Mare District Court. The minutes were forwarded to the Hungarian Ministry and their translation was completed on 3 December 2001 and on 27 February 2002, respectively.

On the applicant’s appeal, the Pest County Regional Court quashed the order of 8 November 2001 and requested the District Court to take a new decision.

After the Hungarian Ministry had replaced the lost documents, on 13 February 2002 the Romanian Satu Mare District Court carried out the requested home study. The translation of the resultant documents reached the Hungarian Vác District Court on 21 May 2002.

Meanwhile, on 15 February 2002 the District Court regulated the applicant’s access rights. This order was amended by the Regional Court on 2 April 2002.

On 26 March 2002 the Pest County Regional Court rejected the applicant’s renewed motion for bias against the Vác District Court and fined him 15,000 Hungarian forints for having repeatedly challenged judges without substantiating the requests.

On 27 May 2002 the District Court appointed an expert in child psychology. The expert’s examination of V., scheduled for 2 July 2002, was cancelled as the defendant was unwilling to attend because she was unable to cover the travelling costs.

The proceedings are still pending.

B.  Relevant domestic law

1.  Romanian Code on Civil Procedure

Article 266

“(...) Copies of the decision will be notified to the parties in case this is necessary to start running the time-limit for bringing an appeal.”

2.  The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction

Article 3

“The removal or the retention of a child is to be considered wrongful where

a)  it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)  at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or          retention. (...)”

Article 7

“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures -

a)  to discover the whereabouts of a child who has been wrongfully removed or retained;

b)  to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

c)  to secure the voluntary return of the child or to bring about an amicable resolution of the issues;

d)  to exchange, where desirable, information relating to the social background of the child;

e)  to provide information of a general character as to the law of their State in connection with the application of the Convention;

f)  to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;

g)  where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;

h)  to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;

i)  to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”

Article 8

“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. (...)”

Article 18

“The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”

3.  Relevant provisions of the Hungarian Code on Civil Procedure

Section 2

“(1)  A court shall - in accordance with Section 1 - enforce the parties’ right to have their disputes determined in fair proceedings and within a reasonable length of time.” 

Section 3

“(1)  The task of a law court is to endeavour to find out the truth in accordance with the aim of the present Act. The court shall, therefore, see in its line of duties that the parties exercise their rights properly throughout the procedure and meet the obligations they are bound to meet in the lawsuit. The court is obliged to provide the necessary information to a party who has no counsel and to remind him of his rights and obligations. The court shall consider pleas and declarations pleaded by a party not by their formal designation but according to their contents.

(2)  The court shall see in its line of duties that cases be tried thoroughly and within a reasonable length of time.”

COMPLAINTS

The applicant complains:

1.  under Article 8 of the Convention that his right to respect for his family life was violated because in the proceedings before the Romanian courts, Hungarian law was not applied as required by the Hague Convention;

2.  also under Article 8 about the failure of the Romanian authorities to take rapid steps to ensure his access rights to his daughter;

3.  under Article 13 of the Convention of not having effective remedies in Romania for his complaints under Article 8;

4.  under Article 2 of Protocol No. 4 to the Convention, on behalf of his daughter, that her liberty of movement has been restricted;

5.  under Article 5 of Protocol No. 7 to the Convention about breach of the right to equality of spouses in the proceedings under the Hague Convention before the Romanian courts and in the actions of the Romanian authorities;

6.  of the length of the proceedings for divorce and related matters before the Hungarian courts and their belatedness in taking interim measures. In this respect, he invokes Articles 6 § 1 and 8 of the Convention.

THE LAW

I.  COMPLAINTS AGAINST ROMANIA

A.  The Government’s preliminary objections

1.  The Government’s preliminary objection based on non-compliance with the six months’ rule

a)  The Government’s submissions

The Government submitted that the application was inadmissible for non‑compliance with the six months’ rule, arguing that the final decision of 2 February 2000, finalised on 3 February 2000, was not subject to ex officio service on the parties, as provided for in domestic law. Therefore, they submitted that, according to the case-law of the Court, the date to be taken into account for the beginning of the six-month period was 3 February 2000 (see Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999-II). They further submitted that the applicant did not request the opening of proceedings for access rights, and thus failed to exhaust domestic remedies in this matter.

Furthermore, they argued that the applicant became aware of the existence of the decision on 7 April 2000 at the latest when the Hungarian Ministry requested their Romanian counterpart to confirm the information which the applicant had obtained about the existence of the decision. They further argued that, in any case, the applicant had not proved that he was only served with the decision on 24 May 2000. They considered that it was for the applicant to make all reasonable efforts to obtain a copy of the decision as soon as possible and that waiting for a courtesy copy to be transmitted to him by the Romanian Ministry through the Hungarian Ministry showed that he had acted negligently (see Haralambidis and others v. Greece, no. 36706/97, § 39, 29 March 2001). They recalled that the Hague Convention did not impose on them an obligation to serve the final decision on the applicant or on the Hungarian Ministry.

b)  The applicant’s submissions

The applicant submitted that the Romanian Ministry acted throughout the proceedings in Romania as his representative. All court judgments were communicated to the Ministry, which in turn duly transmitted them to the applicant. Therefore, the applicant found no reason to expect that a different procedure would be followed as regards the final decision in his case. He recalled that the whole procedure was carried out by means of communications between the two Ministries and that he could not have influenced the timing of those communications.

c)  The Court’s assessment

i)  The date on which the applicant became aware of the final decision of 2 February 2000

The Court recalls that it has previously stated that when the reasons for a decision are necessary for the introduction of an application, the six‑month period ordinarily runs not from the date of notification of the operative part of the decision but from the date on which the full reasons for the decision were given. However, it notes that on 7 April 2000, when the letter enquiring about the outcome of the proceedings before the Romanian courts was sent by the Hungarian Ministry to their Romanian counterpart, the applicant was already acquainted with the outcome of his appeal on points of law but not with the reasons given by the court (see West c. United Kingdom, no. 34728/97, Commission decision of 20 October 1997, Decisions and Reports (DR) 91, p. 85). The date on which he found out about the reasons for the decision was, at the earliest, 24 May 2001 when the Romanian Ministry communicated the text of the final decision to the applicant.

The Court will further analyse whether the applicant made all reasonable efforts to obtain a copy of the final decision of 2 February 2000.

ii)  The Romanian Ministry acted as the representative of the applicant

The Court notes that the Romanian Ministry represented the applicant in all the proceedings before the Romanian courts. All documents in the case, including previous court decisions, were sent by the Romanian Ministry to their Hungarian counterpart, which then forwarded them to the applicant. Furthermore, the letter addressed by the Romanian Ministry to their Hungarian counterpart on 5 March 2001 indicates that the Romanian Ministry alone played an active role in the proceedings before the Romanian courts. At no time did the courts communicate directly with the applicant. All documents, including subpoenas, were sent to the Romanian Ministry in their capacity of representative of the applicant.

Furthermore, the Court acknowledges that the final decision was not subject to ex officio service on the parties. It recalls that according to its case-law if the applicant or his representative fails to make reasonable efforts to obtain a copy of the final decision, the delay in the lodging of the application with the Court is deemed to be due to their own negligence (Züleyha Yilmaz v. Turkey (dec.), no. 27532/95, 9 April 2002).

Accordingly, in the present case, the obligation to make all reasonable efforts to obtain a copy of the decision falls equally on the applicant and on his representative, the Romanian Ministry. However, it must be recalled that the Ministry is part of the Romanian Government.

iii)  Obligation to make all reasonable efforts

As for the applicant, the Court notes that he made reasonable efforts in order to obtain the decision. When he found out, unofficially, that the Oradea Appellate Court had adopted the decision, he used the customary channel of communication and asked for a copy of this decision. Hence, on 7 April 2000, the Hungarian Ministry asked their Romanian counterpart for a copy of the decision to be transmitted to them. As a consequence of his action, the applicant received the final decision of 2 February 2000 on 29 May 2000 by letter of 24 May 2000.

As for the Romanian Ministry, given their role as representative of the applicant, their obligation to make all reasonable efforts in order to obtain the copy of the final decision is implied.

The Romanian Ministry being part of the Romanian Government, the Court notes that the Government enjoy in the instant case a dual capacity: that of the representative of the applicant in the Hague Convention proceedings and that of the respondent Government of the High Contracting Party. In these circumstances, it considers that the Romanian Ministry’s failure to obtain a copy of the decision in their capacity as representative of the applicant cannot be likened to the negligence of a private representative. The Romanian Ministry constitute part of the respondent Government and that Government cannot invoke in their defence their own failures or negligence (nemo auditur propriam turpitudinem allegans).

The fact cannot be overlooked that the applicant is a foreign national living outside the territory of Romania and he could not be expected to know the language of the Romanian courts, i.e. Romanian. Accordingly, for any such contacts, the applicant would have needed the services of a representative. Under the Hague Convention, this role was played by the Romanian Ministry.

The Court acknowledges that the Hague Convention does not impose on the Government the obligation to serve final decisions on the applicant. Notwithstanding this, it is to be noted that the Hague Convention does impose on the Government an obligation to represent the applicant and, in this capacity, to make all reasonable efforts to secure to the applicant the enjoyment of his parental rights.

Therefore, the Court considers that the applicant made all reasonable efforts to obtain a copy of the final decision of 2 February 2000. It thus considers that the starting date for the calculation of the six-month period is, at the earliest, 24 May 2000. It follows that the application, lodged with the Court on 23 November 2000, is within the six-month time limit.

This preliminary objection must therefore be dismissed.

2.  The Government’s preliminary objection based on non-exhaustion of domestic remedies

The Government stated that the applicant could have instituted proceedings in order to obtain visiting rights under the Hague Convention. Alternatively, he could have asked for the determination of his access rights by the Romanian court dealing with his wife’s request for divorce. He could have requested that court to deal also with the issue of custody and he could have sought interim measures from the court. He failed, therefore, to exhaust domestic remedies in respect of his access rights.

The applicant recalls that in instituting the proceedings under the Hague Convention through the Romanian Ministry, his intention was to have his child returned to Hungary and to have the divorce and custody matters heard by the Hungarian courts. He, his wife and their child being Hungarian nationals, it was for the Hungarian courts and not the Romanian courts to deal with such matters.

The Court recalls that, in the area of exhaustion of domestic remedies, it is incumbent on the Government claiming non-exhaustion to persuade the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (Soc v. Croatia, no. 47863/99 § 91, 9 May 2003). The Court finds that the Government have not provided any information indicating that the avenues suggested by them could have proved more effective than the one the applicant had chosen for obtaining redress.

This preliminary objection must therefore be dismissed.

B.  On the merits

1.  The applicant complains that the manner in which the Romanian authorities handled their obligations under the Hague Convention and their failure to secure to him the possibility to exercise his parental rights in respect of his daughter, violated his right to respect for his family life guaranteed by Article 8 of the Convention which reads 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 Government submitted that there had been no interference with the applicant’s rights under the Hague Convention. The Romanian courts which were, according to the case-law of the Court, better placed to examine the issue, found that there had been no wrongful retention on or removal of the child to the Romanian territory.

The applicant submitted that the very aim of the proceedings pursued by him was to re-establish a situation whereby his parental rights could lawfully be determined. Without denying the fact that the national courts were better placed to examine the legal issues, he considered that the final decision on the matter of abduction of his child prevented him from securing this aim. He further submitted that, in his view, the Romanian courts failed to apply Hungarian law in the matter.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant alleged that no effective remedy was available to him before the Romanian authorities for his complaint under Article 8 of the Convention, in violation of Article 13 of the Convention.

The Government submitted that the applicant was able to bring his claim for the return of his child before the judicial bodies in Romania. In their view, the scope of the present application was limited to the proceedings for the return of the child under the Hague Convention. They further asserted that the domestic courts ruled on the matter with full jurisdiction and examined on the merits all the arguments put forward by the applicant. They recalled that Article 13 did not require that the outcome of the proceedings should correspond to the applicant’s objectives (Kaijalainen v. Finland, no. 24671/94, Commission decision of 12 April 1996).

The applicant did not submit further comments on this matter.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3.  The applicant submits that the manner in which the Romanian authorities fulfilled their obligations under the Hague Convention infringed his daughter’s freedom of movement and choice of domicile as guaranteed by Article 2 of Protocol No. 4 to the Convention, which reads as follows:

“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2.  Everyone shall be free to leave any country, including his own.

3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.  The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

Without prejudice to the question as to whether the applicant has standing to introduce this complaint on behalf of his daughter, the Court notes that the applicant did not submit any information indicating that the authorities imposed any restriction on his daughter’s freedom of movement. There is nothing to indicate that her identity documents were confiscated or that she was obliged to live in Romania or prevented from leaving Romania by the authorities. The decision of which the applicant complains was limited to rejecting his claim for his daughter’s return under the provisions of the Hague Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4.  The applicant considers himself to be a victim of a violation of Article 5 of Protocol No. 7 to the Convention since the Romanian courts disrespected his right to equal rights with his spouse in respect of their daughter. Article 5 of Protocol No. 7 reads as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

The Government submitted that since the application referred exclusively to the proceedings under the Hague Convention, this complaint is inadmissible as falling outside the scope of the Convention. They considered that no interference by the Romanian authorities with the applicant’s rights under the above-cited Article occurred in the proceedings under the Hague Convention and that, in any case, the applicant had not substantiated the complaint.

The applicant did not submit any further comments on this point.

The Court recalls that it has previously decided that Article 5 of Protocol No. 7 to the Convention essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning such matters as their relations with their children (Cernecki v. Austria, (dec.), no. 31061/96, 11 July 2000).

In the present case, the applicant does not question the legislative framework. His criticism only concerns the way in which the national court applied it. The Court finds no indication that the law in question violates the equality clause provided for in Article 5 of Protocol No. 7 to the Convention.

Furthermore, the Court recalls that the Romanian courts were asked to decide solely on the return of the child to his father. The Romanian courts in the Hague Convention proceedings were not called on to deal with custody matters or visiting rights or other issues relating to the parents’ rights and responsibilities with respect to their daughter. These matters are in fact still pending before the Romanian and Hungarian courts.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II.  COMPLAINTS AGAINST HUNGARY

The applicant complains that the proceedings for divorce and related matters lasted an unreasonably long time. Invoking Articles 6 and 8 in this respect, he submits in particular that, despite several requests for the regulation of his access and custody rights, the District Court only decided the access issue on 15 February 2002, whereas the custody issue has not yet been resolved.

The Court considers that the applicant’s complaints against Hungary essentially relate to the length of the proceedings under Article 6 § 1 of the Convention, which provides, in its relevant part, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government argue that the case has not been particularly complex as regards the legal issues involved. However, they maintain that the international aspects of the dispute – namely, the involvement of the Romanian authorities in the examination of the parties’ living conditions, the correspondence between the Hungarian and the Romanian authorities and the translation of documents – have inevitably slowed down the proceedings. They assert that the applicant has not shown due diligence and stress that he filed several ill-founded motions for bias against the presiding judges.

The applicant contests these arguments. He claims that the translation of documents sent to the defendant was unnecessary, having regard to the fact that she understood Hungarian. He further argues that the Hungarian Ministry of Justice contributed to the protraction of the proceedings by failing to forward court documents and to complete translations in good time.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Dismisses the Government’s preliminary objections in respect of Romania;

Declares admissible, without prejudging the merits, the applicant’s complaints concerning Articles 8 and 13 of the Convention in respect of Romania;

Declares admissible, without prejudging the merits, the applicant’s complaint concerning Article 6 § 1 of the Convention in respect of Hungary;

Declares the remainder of the application inadmissible.

S. DolléJ.-P. Costa
RegistrarPresident

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