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)
Full & Egal Universal Law Academy