Lexploria

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)

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A.L. H., E.S. H., D.C. L., B.M. L. and M.E. v. HUNGARY

A.L. H., E.S. H., D.C. L., B.M. L. and M.E. v. HUNGARY

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